Getting federal approval for permits to build bridges, wind farms, highways and other major infrastructure projects has long been a complicated and time-consuming process. Despite growing calls from both parties for Congress and federal agencies to reform that process, there had been few significant revisions—until now. In one fell swoop, the U.S. Supreme Court has changed a big part of the game.
Whether the effects are good or bad depends on the viewer’s perspective. Either way, there is a new interpretation in place for the law that is the centerpiece of the debate about permitting—the National Environmental Policy Act of 1969, known as NEPA.
NEPA requires federal agencies to document and describe the environmental effects of any proposed action, including construction of oil pipelines, renewable energy and other infrastructure projects. Only after completing that work can the agency make a final decision to approve or deny the project. These reports must evaluate direct effects, such as the destruction of habitat to make way for a new highway, and indirect effects, such as the air pollution from cars using the highway after it is built.
Decades of litigation about the scope of indirect effects have widened the required evaluation. The challenge for federal agencies was knowing how much of the potentially limitless series of indirect effects courts would require them to evaluate. In recent litigation, the question in particular has been how broad a range of effects on and from climate change could be linked to any one specific project and therefore require evaluation. With the court’s ruling, federal agencies’ days of uncertainty are over.
On May 29, the Supreme Court—minus Justice Neil Gorsuch, who had recused himself—decided the case of Seven County Infrastructure Coalition v. Eagle County, CO, the first major NEPA dispute before the court in 20 years.
At issue was an 85-mile rail line a group of developers proposed to build in Utah to connect oil wells to the interstate rail network and from there transport waxy crude oil to refineries in Louisiana, Texas and elsewhere. The federal Surface Transportation Board reviewed the environmental effects and approved the required license in 2021.
The report was 637 pages long, with more than 3,000 pages of appendices containing additional information. It acknowledged but did not give a detailed assessment of the indirect “upstream” effects of constructing the rail line—such as spurring new oil drilling—and the indirect “downstream” effects of the ultimate use of the waxy oil in places as far flung as Louisiana.
In February 2022, Eagle County, through which trains coming from the new railway would pass, along with the Center for Biological Diversity, appealed that decision in federal court, arguing that the board had failed to properly explain why it did not assess those effects. Therefore, the county argued, the report was incomplete and the board license should be vacated.
In August 2023, the U.S. Court of Appeals for the D.C. Circuit agreed and held that the agency had failed to adequately explain why it could not employ “some degree of forecasting” to identify those impacts and that the board could prevent those effects by exercising its authority to deny the license. The railway developers appealed to the Supreme Court, asking whether NEPA requires a federal agency to look beyond the action being proposed to evaluate indirect effects outside its own jurisdiction.
Writing for a five-justice majority, Justice Brett Kavanaugh delivered a ringing, table-pounding lecture about courts run amok. Kavanaugh did not stop to provide specific support for each admonition, describing NEPA as a “legislative acorn” that has “grown over the years into a judicial oak that has hindered infrastructure development.” He bemoaned the “delay upon delay” NEPA imposes on projects as so complicated that it bordered “on the Kafkaesque.” His opinion reset the course in three ways.
First, despite the Supreme Court having recently reduced the deference courts must give to federal agency decisions in other contexts, Kavanaugh wrote that courts should give agencies strong deference when reviewing an agency’s NEPA effects analyses. Second, Kavanaugh crafted a new rule saying that the review of one project did not need to consider the potential indirect effects of other related projects it could foreseeably induce, such as the rail line encouraging more drilling for oil. And third, Kavanaugh created something like a “no harm—no foul” rule, under which “even if an (environmental impact statement) falls short in some respects, that deficiency may not necessarily require a court to vacate the agency’s ultimate approval of a project.”
Though the full effects remain to be seen, this decision significantly changes the legal landscape of environmental reviews of major projects. Agencies will have more latitude to shorten the causal chain of indirect effects they consider—and to exclude them entirely if they flow from separate projects beyond the agency’s regulatory control.
Now, for example, if a federal agency is considering an application to build a new natural gas power plant, the review must still include its direct greenhouse gas emissions and their effects on the climate. But emissions that could result from additional gas extraction and transportation projects to fuel the power plant, and any climate effects from whatever the produced electricity is used for, are now clearly outside the agency’s required review. And if the agency voluntarily decided to consider any of those effects, courts would have to defer to its analysis, and any minor deficiencies would be inconsequential.
That is a far cry from how the legal structure around NEPA has worked for decades. For lawyers, industry, advocacy groups and the courts, environmental review after the Eagle County decision is not just a new ballgame; it is a new sport. — J.B. Ruhl, co-director of Vanderbilt University Energy, Environment and Land Use Program
This article is republished from The Conversation under a Creative Commons license and was condensed for print. Read the original article here.
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